Comments on CYM179633 Land Registry Transfer Document.
(N.B. I am not legally qualified. These comments should act as guide when obtaining legal advice).
It may help if I can give a picture of Plas Panteidal Estate.
It is undoubtedly a beautiful and serene place. It helps if you can imagine it as three related and intertwined entities. One is the main estate consisting of the land in general including the trees and footpaths, the other consists of the roads, parking places, and the utilities infrastructure which are also owned by the site owner, and thirdly there are the freehold chalets owned by separate freehold owners and served by these roads, parking places, and utilities infrastructure. There are covenants and easements which essentially form a contract between the owners of the main estate (landlords), and the owners of the chalets (tenants) which are written into the chalet Titles.
The main elements of this contract is that the site and its facilities are private and for the sole use of the chalet owners. The chalet owners must comply with rules on how they use the facilities, and they must also contribute towards the upkeep of the defined roads, parking places, and utility infrastructure (which they are the only ones allowed to use). This is done by them paying equally to the landlord under a service charge termed the Estatecharge Rent, which is specifically for these defined roads, parking places, utility infrastructure and not for the site in general.
It might be easier to envisage it as described in the following analogy.
Imagine a large private house with extensive grounds, and with drives around the ground. The owner of the house decides to sell a plot of land for a house to be built on. He agrees with the developer that the new house can use certain of the roads (as defined in an agreement) to access the main road and that these roads are only to be used by the new house owner, his guests, and his invited visitors. As part of the agreement the original house and grounds owner stipulates that the new house owner will pay towards the upkeep of the roads he has been given the right to use. There is an agreement that the original owner will account for any money spent on these defined facilities.
The above all seems straight forward and understandable, but what if the original owner decides he wants to grow exotic plants, and keep rare animals in his garden?
Does the new house owner have any control over this, can they be plants or animals that will blight the environment as far as the new house owner is concerned, and can the site owner now expect the new house owner to contribute towards the upkeep of the plants and animals, and for the employment of a gardener. It all begins to be fraught.
Obviously the new house owner is bound by the original agreement, but these additional obligations the site owner wants to impose will need to be subject to new and separate agreement if one can be achieved.
Thus lies the problem we are at with Plas Panteidal. In addition the Titles with their covenants and easements were all written about fifty years ago and in a language only used by legal professionals, so what chance for the likes of us (and civilisation in general) to understand them.
The following pages attempts to bring out and clarify points by reference to the Transfer Document in the Title of my property.
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a good place to start is by looking at page 3 of the transfer document which is a list of definitions. Definition (H) defines the “MAINTAINED PROPERTY”. They are the Private Roads and Service Installations laid under or over any other parts of the development and shall include the Landscaped Areas and the Parking Areas. (n.b. the Landscaped Areas are defined in definition (G) and are not the site in general)
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definition ( C) defines that the Private Roads means the roads and footpaths serving the development the approximate position of which is shown on the filed plan. I believe this is all roads and paths currently on the site.
The other definitions are all straight forward.
I now will comment on each page in turn.
Page 4. Paragraph 1 defines the two forms of rentcharge relevant to the site. The first is a perpetual yearly rentcharge of one pound (£1.00). This is an archaic rentcharge now virtually redundant and will be illegal after 2037.
The next rentcharge is the one we will mainly concentrate on and is termed the Estate Rentcharge which we will see further information on as we go through the Transfer Document.
It also points out that the covenant is between the chalet owner, the site owner (the transferor) and between all the other chalet owners.
Page 5. No comment.
Page 6. Points 3 and 4 on this page are quite important.
Point 3. This give the chalet owner the right “to go pass and repass at all times and for all purposes of access and egress (getting in and out) from the property transferred with or without vehicles over and along such parts of the Private Roads as fall outside the property transferred . This also covers the chalet owners tenants, servants and visitors (in English, yourself and others you invite) and it is in common with all other persons having the like right, i.e. all other chalet owners with similar titles (this surprisingly does not include the Site Owner or others invited by the site owner).
Point 4 is the equivalent rights regarding parking.
Page 7. Point 4 on this page defines the Transferors (site owners) right to develop the remainder of the site.
Page 8. Gives restrictions on using chalets for any trade or profession, not to obstruct any of the roads or pathways, and various other restrictions. There is also a stipulation that the chalets should be painted every five years and any necessary repairs carried out
Page 9 then deals with the Rentcharge Covenants.
Point 2. This is quite clear that the chalet owner pays “on account” the Rentcharge in advance in each year the amount estimated (by the site owner) to represent a proportion of the costs expense and outgoings incurred or to be incurred by the transferor in accordance with its obligations for the current coming year. It does not allow for costs incurred in previous years. Each year the Transferor will provide accounts certified by an accountant of the monies spent on the maintained properties.
If the transferee has overpaid or underpaid then the over payment will be repaid by the site owner,or in the case of an underpayment, a further (additional) charged will be levied.
Point 3 allows the transferor to charge for the supply of water the amount to be determined by the production of a Certificate of Expenditure prepared by a competent authority.
Page 10. Point 4. Transferee must pay for electricity consumed. Note this does not include payment for the electricity supply infrastructure which is paid for under the "service charge".
Point 5. The transferee must pay a fair and proper proportion of the expense of the service installations used by the property. What is fair and proportionate is obviously something that needs to be agreed, particularly as some chalets are now allowed whole year occupancy, some are only allowed 10 ½ months occupancy, some are holiday lets with variable occupancy, and indeed it is a mares' nest to work out and agree!!
point 7. The Transferor can form a Management Company to manage the MAINTAINED PROPERTY. If such a company is formed each chalet owner must take a one pound share and participate in that company.
This is not a request for them to do, it is something they agreed to do when buying the property. Note again this company is only responsible for the defined Maintained Property, not the whole site, and the chalet owner is involved in directing the company and also for the companies debts.
This company can only be started by the site owner but it does relieve him of the tedious task of administrating the house keeping associated with the maintained properties, which are all activities which have costs but can raise no profits.
It also has a deed of covenant condition that the chalet owner cannot lease the chalet out for a period exceeding 21 years, and includes conditions applicable to any lease that is granted.
Page 11. This is the first page of the deed of covenant
Page 12. Consists of covenants by the site owner to keep the Maintained Property (n.b. not the whole site!) maintained and to maintain an adequate supply of water to the property. It is arguable whether “adequate” includes quality (such as it must be drinkable). It also in point (e) states that the Transferor will pay for any agent or agents etc. It does not say whether the expenses of these agents are claimable from the Estatecharge Rent but presumably they are.
Page 13. Note that point (I) states that all other chalet owners have similar covenants.
Summarising points.
The Maintained Property is defined. It is the private Roads, Parking Areas, and any Landscaped Areas from time to time set aside for general recreation or use by the chalet owners in common with the Transferor's servants, agents, tenants or licensees.
Note that these areas must be defined, and are not for the general public. General recreation needs defined but recreational facilities are generally swimming pools, bowling greens, skate parks, etc.
The Site Owner charges chalet owners an annual Estatecharge Rent to pay for the maintenance of the defined Maintained Properties. He must show the expenses incurred (certified by an accountant) and repay any over estimate of expenses, but can make an additional charge for any shortfall. This is done on an annual basis and only expenses for maintenance caused by that years use (i.e. not historic expenses) can be included.
The Plas Panteidal Claims Group in their litigation with Trehaven Leisure Limited (E30BM354) where advised on this by their Barrister, Mr David Mitchell, who stated "I cannot find any covenant to maintain the grounds generally or trees, as such does not fall within the definition ‘Maintained Property)’;
I have also seen statements by PPCG's solicitor that the Estatecharge Rent cannot be used on previous years non-maintenance or in complying with the Court Order (E30BM354 order 3: viz. The First and/or Second Defendants shall by 4pm on 30th September 2020 remedy the breaches of Covenant set out in the Particulars of Claim with regard to the water supply, the Sewerage Plant, the electrical distribution system and the Main Access Road).